FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 

New Models MUR 6872 

STATEMENT OF REASONS OF 

COMMISSIONER ELLEN L. WEINTRAUB 

I did not expect to be celebrating Groundhog Day between Hanukah and Christmas this 

week. But here I am, once again, faced with pages upon pages of analysis from my Republican 

colleagues on why, once again, they couldn't possibly find that a group that gave the majority of 

its money in a calendar year to a super PAG could under any circumstances be considered a 

political committee that year. 

Their argument, in a nutshell, is that one can determine the political-committee status of 

an organization only by looking at the group's spending over its entire lifetime. But over the 

course of 32 pages and 139 footnotes,' my colleagues fail to mention that this exact argument 

was evaluated - and resoundingly.rejected - by a court/«.?/ last year, in remarkably similar 

circumstances, in the CREW v. EEC matter regarding the American Action Network." 

My colleagues do cite the case, pulling out the parenthetical that it's "reasonable for the 

Commission to consider organization's 'full spending history.But for some reason they fail to 

note that the opinion's next paragraph starts with the word "However," and it all goes downhill 

from there. 

2 

Statement of Vice Chair Caroline C. Hunter and Commissioner Lee E. Goodman, dated Dec. 20, 2017. 

209 F.Supp.Bd 77 (2016). 

' Statement of Vice Chair Caroline C. Hunter and Commissioner Lee E. Goodman, dated Dec. 20,2017, at 

n.i32. 
MUR 6872 (New Models) 

Statement of Commissioner Eiien L Welntraub 

ff^c^ downhill. Let's recap: Judge Christopher R. Cooper of the U.S. District Court for the 

District of Columbia called the Republicans' reasoning on this point "arbitrary" ^ and "contrary 

to law" ^ and awarded summary judgment to CREW.® 

It is difficult to make the case against my Republican colleagues' political-committee 

analysis more clearly than Judge Cooper did last year, so I'll let him take it from here: 

Given the FEC's embrace of a totality-of-the-circumstances approach to divining 

an organization's "major purpose," it is not per se unreasonable that the 

Commissioners would consider a particular organization's full spending history 

as relevant to its analysis. 

However, the Commissioners have gone further than merely eschewing the 

calendar-year approach as a "rigid, one-size-fits-all rule " at odds with the FEC's 

chosen case-by-case method... Rather, they have replaced that rule with a 

different — but equally inflexible — metric. Looking only at relative spending 

over an organization's lifetime runs the risk of ignoring the not unlikely 

possibility, contemplated by the Supreme Court, that an organization's major 

0 purpose can change. See MCFL, 479 U.S. at 262, 107 S.Ct. 616 (recognizing that 

a group's "spending [may] become so extensive that the organization's major 

purpose may be regarded as campaign activity [such that] the corporation would 

be classified as a political committee." (emphasis added))... 

The Commissioners' refusal to give any weight whatsoever to an organization's 

relative spending in the most recent calendar year — particularly in the case of a 

fifteen-year-old organization like AJS — indicates an arbitrary "fail[ure] to 

consider an important aspect of the [relevant] problem. "... The seriousness of 

that failure would only increase with the lifespan of the challenged organization: 

A half-century-old organization with a substantial spending history could 

commence spending handsomely on election-related ads and continue such 

expenditures for decades before its new "major purpose " would be detected by 

the controlling Commissioners' lifetime-only approach. Surely, that cannot be 

what Congress contemplated in defining "political committee" in terms of 

calendar-year spending under FECA, see 52 U.S.C. § 30101(4) (definingpolitical 

committee as an entity with more than $1,000 in contributions or expenditures in 

a calendar year), nor can it be what the Supreme Court intended with its "major 

purpose " narrowing instruction, see MCFL, 479 U.S. at 262, 107 S.Ct. 616. 

The Court therefore concludes that the Commissioners' lifetime-only rule — at 

least as applied to AJS — is "contrary to law, " 52 U.S.C. § 30109(a)(8)(C), in that 

it tends to ignore crucial facts indicating whether an organization's major 

209F.Supp.3d 77 at 94. 

Id. 

Id at 95. 

5 

6 

Page 2 of 3 
MUR 6872 (New Models) 

Statement of Commissioner Eiien L. Weintraub 

purpose has changed, and is inconsistent with the FEC's stated fact-intensive 

approach to the "major purpose " inquiry.' 

The 2016 CREW v. EEC decision was an embarrassing legal smackdown for my 

Republican colleagues. It takes some real chutzpah for them to now cite that very decision to try 

to make the exact legal point upon which they had been smacked down. 

It is disappointing to see that my Republican colleagues failed to learn anything from the 

experience and &at they are willing to make the exact same legal mistake again, likely with the 

exact same legal consequences when the 2018 version of CREW v. EEC undoubtedly hits the 

courts. It's dejd vu all over again, and it makes for an unhappy Groundhog Day. 

17 I'^UJJYX l^- IA)MfftAJ/J 

Date Ellen L. Weintraub 

Commissioner 

Id. at 94-95. 

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